Definition and fundamentals of the concurrence of multiple criminal offenses
Under the term concurrence of multiple criminal offenses in German criminal law, the existence of several legally independent criminal offenses, committed by one or more acts of an offender, is understood. The legal treatment of this concurrence is governed by Sections 52 to 55 of the German Criminal Code (StGB) and constitutes a central topic in the area of sentencing and the structure of punishable conduct. The objective of these regulations is to ensure appropriate and proportional punishment where there is multiple, qualified criminal wrongdoing.
The concurrence of multiple criminal offenses is particularly important for sentencing, known as ‘sentence concurrence.’ A fundamental distinction is made between concurrence by several acts (real concurrence) and concurrence by a single act (ideal concurrence).
Types of concurrence of multiple criminal offenses
Concurrence by a single act (§ 52 StGB)
Concurrence by a single act, also called ideal concurrence, occurs when the offender, through a single act, violates several different criminal laws or the same law several times. An example would be simultaneously insulting and physically assaulting a person in one conduct. Concurrence by a single act is characterized by the overlap of the elements of wrongdoing and legal violations of various criminal offenses.Sentencing in cases of ideal concurrence: In cases of ideally concurrent offenses, the court imposes a single sentence for the offenses committed. Subsequently, the sentence is determined appropriately based on the range of penalties for the overall offense (§ 52 para. 2 StGB). The court bases its decision on the sentencing range for the most serious law but increases the punishment taking into account the overall assessment under criminal law.
Concurrence by several acts (§ 53 StGB)
Concurrence by several acts, also called real concurrence, occurs when multiple legally independent actions violate several criminal laws or the same law several times. An example is committing several thefts on different days. Each offense constitutes its own act, but these acts are assessed together in one proceeding.Sentencing in cases of real concurrence: In cases of real concurrence, individual prison sentences or fines are imposed for each act. The court then determines, in accordance with § 53 para. 2 StGB, a total prison sentence or a total fine by combining the individual sentences under the principles of total sentence formation.
Statutory concurrence
In addition to ideal and real concurrence, Statutory concurrencestatutory concurrence also exists. Here, a special situation is present: For example, one provision supersedes another (so-called specialty, subsidiarity, or consumption), so that only one provision is applied for punishment. Statutory concurrence results in only one punishment being imposed, even if several aspects of the facts are covered by multiple criminal provisions.
Types of statutory concurrence
- Specialty: The more specific provision supersedes the more general one.
- Subsidiarity: The subsidiary provision is set aside as long as a primary provision is fulfilled.
- Consumption: A comprehensive provision “consumes” the accompanying offenses committed together with it.
Legal consequences of the concurrence of multiple criminal offenses
Formation of a total sentence
The key procedural consequence is the formation of a total sentence (§§ 54, 55 StGB). The sentences for the individual offenses are combined into an appropriate total sentence, taking into account culpability, wrongdoing and an overall assessment. The highest individual sentence forms the lower limit; the total sentence may not exceed the highest amount by more than what is reasonable.
Legal effect on criminal proceedings
In criminal proceedings, all offenses established up to the last instance of fact must be included in the total sentence formation. If, after final judgment, a conviction is made for an offense not previously adjudicated, a subsequent total sentence formation usually occurs (§ 55 StGB).
Special considerations in sentencing
Relationship to procedural principles
The correct legal assessment of the concurrence of multiple offenses is of great importance:
- Prohibition of double punishment (ne bis in idem): No prosecution or punishment may occur more than once for the same conduct.
- Accumulation principle vs. asperation principle: In German criminal law, the asperation principle applies; this means that the most severe punishment is increased by further offenses to form the total sentence.
Impact on ancillary legal consequences
Ancillary punishments and consequences (e.g., revocation of driving license, professional bans) can be imposed cumulatively in the case of multiple concurrent offenses, provided the requirements for each individual act are fulfilled.
Issues of distinction and practical significance
The correct classification as real concurrence, ideal concurrence, or statutory concurrence is often complex and depends on the interpretation of the individual case. Exact distinctions are particularly necessary in cases of continuing offenses, offenses by omission, or ongoing actions.
Addressing the concurrence of multiple offenses is practically important to comply with the principle of culpability as well as the principle of legal certainty, and to ensure the uniform application of criminal law.
International comparisons
The problem of concurrence of multiple offenses also exists in other legal systems, but is sometimes regulated differently. While the Anglo-American legal system often applies the accumulation of sentences principle, German law follows the total sentence formation system.
Literature and further information
For in-depth study on the topic of concurrence of multiple criminal offenses, it is recommended to consult commentaries on §§ 52-55 StGB as well as criminal law textbooks, in order to fully understand the particulars and special features of competing crime definitions and consequences.
This article provides a comprehensive presentation of the legal treatment of the concurrence of multiple criminal offenses in German criminal law and serves as a detailed source of information for the classification and practical application of the relevant provisions.
Frequently Asked Questions
How are multiple criminal offenses committed simultaneously treated under German criminal law?
German criminal law regulates how multiple offenses committed by one person are treated. It is essential to distinguish between ideal concurrence (§ 52 StGB) and real concurrence (§ 53 StGB). Ideal concurrence exists when multiple criminal offenses are realized through one act or an act unit. In this case, a total sentence is imposed, based on the severest sentencing range of the offenses committed, which may then be appropriately increased. Real concurrence, on the other hand, arises when a person commits several independent crimes by several acts. In this case, the individual punishments are likewise combined into a total sentence, which may not exceed the sum of the individual punishments and must not surpass a certain upper limit. The formation of the total sentence under both principles is governed by complex rules in the Criminal Code, with the degree of wrongdoing and culpability of the offenses being reasonably taken into account.
What effect does the concurrence of multiple criminal offenses have on sentencing?
The concurrence of multiple offenses affects sentencing through the formation of a total sentence pursuant to §§ 52, 53 StGB. Courts must determine which offense carries the highest penalty and use that sentencing range as the basis. For ideal concurrence, a suitable increase will be made, whereas for real concurrence, a total sentence is constructed by combining the individual penalties. It is crucial that the culpability and seriousness of each individual offense are assessed and the overall conduct of the offender is taken into account. In exceptional cases, the punishment can be increased or reduced where expressly provided by law (e.g. particularly serious cases). The court must ensure that the punishment as a whole is appropriate to the offender’s culpability and that it reflects both the severity of the offenses and their interactions.
What happens if individual criminal offenses provide for special rules regarding concurrence with other offenses?
Certain criminal provisions contain special rules for their concurrence with other offenses, known as qualifications or aggravations. For example, this may be the case where the law itself refers to a specific form of concurrence (as with robbery resulting in death or particularly aggravated theft). In such cases, special provisions determine how the concurrence is to be assessed in law, for instance, whether the qualified offense takes precedence over the basic crime or whether cumulative punishment is applied. Furthermore, it can happen that for certain offenses statutory concurrence applies, with only the most serious offense being punished. In effect, these special rules partly override the general rules of §§ 52, 53 StGB.
How does the court determine whether ideal or real concurrence exists?
The distinction between ideal and real concurrence is made based on whether there is a unity or plurality of acts in criminal law. The crucial factor is whether the offender’s actions constitute a natural or legal unity of action. A natural unity of action exists when several deeds are so closely connected that they appear as a single overall event (e.g. a series of blows in an ongoing fight). A legal unity of action usually requires that several protective laws are violated at the same time by one act (classic example: one act constitutes both bodily harm and property damage). By contrast, if several, independent acts occur – e.g. a theft on Monday and an assault on Tuesday – this is real concurrence. The court makes this legally significant determination separately for each individual act.
Are there cases in which an offense is set aside or no longer punished independently due to concurrence with other offenses?
Yes, this is possible within the framework of statutory concurrence. In some cases, the law contains more specific criminal provisions that operate as lex specialis. This means that a more specific criminal offense supersedes the general one (‘specialty’), or several offenses are entirely subsumed under one act and only the more serious offense is punished (‘consumption’). Likewise, individual offenses may be regarded as non-punishable if they are included with the main offense (‘offense included by virtue of commission or after the fact’). Such categories of assessment are applied, in particular, when the factual characteristics of an offense are comprehensively reflected in a broader criminal provision.
How does the concurrence of multiple offenses affect ancillary punishments or legal consequences?
When multiple offenses concur, the decision regarding ancillary punishments (such as driving bans (§ 44 StGB), license revocation (§ 69 StGB)) and ancillary consequences (like confiscation or forfeiture) applies to all relevant offenses. Ancillary punishments can, in principle, be imposed for each individual act. The court is obliged, during total sentence formation, also to examine the imposition and extent of ancillary punishments and legal consequences and to justify them clearly in the judgment. It is possible that several ancillary punishments may be aggregated into one or may exist side by side, depending on the nature and seriousness of the offenses adjudicated.
Can an offense that has already been finally adjudicated still be included as part of a total sentence for further offenses?
This is generally excluded. If an offense has already been finally adjudicated, it can no longer be included in a new total sentence (‘prohibition of subsequent total sentence formation’). However, the institute of subsequent total sentence formation (§ 460 StPO) allows for offenses that have been decided in different proceedings to be combined into a total sentence, as long as none of the judgments has become final or a combination is possible as part of a subsequent proceeding. The details are strictly regulated by law to ensure legal certainty and to protect the defendant’s legitimate expectations.
